Document Type


Publication Date

Winter 2014


To the extent we think about it all, most of us believe what our parents tell us about where we came from-about who our grandparents are, who our ancestors were, our ethnic background, our family histories. My own family story includes claims to Scottish, Irish, French, and English ancestry. It also includes the Cherokee great-grandmother so popular in American genealogical stories. I have not undertaken an extensive genealogical search to more accurately pinpoint the threads of my ancestral quilt; I have simply accepted the family lore without much thought to whether it was verifiable.

My family's claimed link to the Cherokee is not unique. In fact, claims of Indian heritage have been called "one of the most common genealogical myths in the United States." For most people, talking about their Indian grandmother or relying on family stories to self-identify as Indian-at least in part-is not particularly noteworthy. However, during the 2012 election season, a firestorm erupted over then-U.S. Senate candidate Elizabeth Warren's assertion that she had Cherokee and Delaware Indian ancestors.Warren based her claim on family lore-i.e., she learned of her ancestry from comments about her grandfather's "high cheekbones" and from stories told to her by her mother and by her grandparents. It was an identity she grew up believing about herself. ...

The preoccupation with what Warren stood to gain by claiming Indian ancestry appears to conflate family lore with the legal consequences of Indian status. It is that conflict between legal and social implications of "Indianness" that is the focus of this article. Part II will discuss the legal and social consequences that flow from Indian status in the United States. Part III will then discuss the myriad legal definitions of "Indian" and how the application of a particular definition can determine the status of an individual as part of a cultural group. Because federal law includes more than thirty definitions of Indian, the purpose for which the claim is made can affect whether a person is considered legally "Indian." Consequently, an individual could be considered Indian under one area of federal law, but not under another. While most people are unlikely to encounter significant problems under this scheme, for some the effect can be profound. Part IV will look at three circumstances where the application of a particular definition can determine an individual's Indian status, resulting in concrete legal consequences. Specifically, it will consider how definitions work to include or exclude individuals in criminal prosecutions, sharing of gaming revenue, and the adoptive placement of Indian children. Part V then considers whether, given the real life consequences, a cohesive definition of Indian is possible or desirable.